5.  The applicant was born in 1946 and lives in Sant’Angelo In Campo (Lucca).
6.  In 2001 the applicant was practising law. In September 2001 he sent a letter to the Italian National Legal Service Commission (Consiglio Superiore della Magistratura – the “CSM”) in which he complained about the conduct of a judge, X, at the Lucca District Court. He subsequently transmitted the content of that letter by means of a “circular letter” to a number of judges of the same court, but without expressly referring to X by name.
7.  The relevant parts of that circular letter read as follows:
“Before you receive any incorrect or untrue information, before the corporatist spirit prevails over a correct interpretation of the reasons that drove me to write to the CSM, to the Ministry of Justice, to the National Council of Notaries and to the National Bar Council, about the conduct of two judges of the Lucca District Court in the context of a judicial partition procedure to which my clients were parties, and before any of my colleagues come to apologise, on my behalf, for my initiative, perhaps making out that I am insane or irresponsible, my intention is to clarify and tell you the reasons which led me to do so.
An appeal on points of law is pending against a judgment of the Lucca District Court in which that court, ruling against the claims by a female partner and deciding on the related issue of the partition of an inheritance, asked the investigating judge to proceed with the sale of a flat, which was the sole item of property to be divided between the heirs, and which was occupied by the partner and her daughter, an heir, born to the cohabiting couple. Since the judgment of the Lucca District Court was not final, it was not possible to proceed with the sale or to initiate the procedure relating thereto, since this was prohibited expressly by Article 791 of the Code of Civil Procedure.
The other heir, however, applied for ... the sale, and the investigating judge, in spite of our repeated requests for suspension of the sale, which were all rejected, brought about, after two auctions without a buyer, the conveyance of the property to a third party at the third auction.
Here are the specific reasons for which all our requests were rejected:
...
In spite of this, I would like to point out at the outset that I do not feel any animosity towards the judiciary and judges in general, and that I consider, by contrast, that the role played by judges is crucial and irreplaceable for civil society.
There are and have been judges who carry out and have carried out their duties with great dignity and decorum [decoro], and who deserve my admiration and the admiration of all those who have worked in the field of justice. None of us can forget Y, who died, one can say, on the ‘battlefield’. I still remember that, in the courtroom, he was the one, out of all his colleagues, who, even in his state of extreme and obvious suffering, took the greatest number cases for adjudication, and he carried on doing this until the bitter end. I confess that if I had been able to spare him the effort, in view of his condition, I would willingly have taken over his workload. But there are other equally deserving judges who work, even during their holidays, going to the office, talking to lawyers, and with whom we can have a form of collaboration and dialogue – and to them I also express my esteem and admiration.
I am well aware that justice is done by men and precisely for that reason decisions may be erroneous and incomplete. I still prefer, however, a human justice to one that is automated.
But what I refuse to accept is the idea that, when the rights of the individual and the dignity of those whose task it is to defend him or her are at stake, those rights could be decided upon in a partial manner, perhaps with a display of arrogance, or that a ruling could be given with total indifference and lack of commitment. I personally believe strongly in the autonomy of the judiciary and I feel that without respect for the autonomy of the person whose task it is to decide, it would be impossible to have dispassionate and fair judgments. Autonomy, however, cannot be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness. I have pointed out how I see the meaning of justice and reiterate that I think very highly of the duties exercised by judges, and that my full admiration goes to those who act with dedication, commitment and decorum [decoro].
I am even envious of judges, because they probably have more time to study and to dwell on issues, and also to attend to other cultural and social interests, than lawyers who, by the nature and specificity of their work, do not always manage to do things or to do things well. I often take home things to read and to study and I end up, mid-evening, nodding off over a book after a busy day, running from one office to another in the morning, and answering the phone or receiving clients in the afternoon. I also understand that the judiciary is burdened with work and with problems, that the staffing is insufficient and the workload huge – and for that reason it is true that protests [esposti] do not help to get the work done more easily, and that more collaboration and dialogue would be better than protests. There are limits, however, that in my view should not be passed and, after thinking about this for quite some time, I decided to submit this particular protest [the letter to the CSM]. I will now quote the last part of my protest in which I dwell on the meaning of the lawyer’s profession and ask whether it is legitimate that any decision or conduct should always be accepted:
‘This lawyer would point out as follows:
It is regrettable to direct this letter against individuals who, even [if they have] different duties, are considered by this lawyer to be “colleagues”, as practitioners in law usually call each other. He considers, however, that he is obliged to do so in response to a lack of commitment and total indifference towards the legitimate demands of the citizen in whose name justice is done, with a belief in impunity, as the position is one of “power”, even though it should be seen as the discharge of a “duty”, and “last but not least”, a lack of respect for the dignity and responsibility of this lawyer’s profession.
This lawyer has practised law in courts at three levels of jurisdiction, has borne very high costs on behalf of his clients – to the point where, if one were to apply the professional rate, one would exceed the amount of the claim – has sought, in three statements of claim filed in the Florence Court of Appeal, a stay of execution under Article 373 of the Code of Civil Procedure, but his requests were all rejected by reasoning that leaves much to be desired – but that is not the subject of this protest –has accumulated a formidable pile of documents of all descriptions, and has seen the attachment of funds in respect of his own claim go up in smoke.
In the time it has taken to work on these cases, he could probably have dealt with fifteen ordinary cases of average complexity.
If work – any type of work, provided it is lawful – has its own protection and its own dignity, then the judge too (more than any person, as a result of his function and role) cannot but allow himself not to respect for the work of others, including that of the lawyer.
As a legal practitioner, this lawyer has a duty to provide some certainty to his client, who is the citizen in whose name justice is done (judgments are headed “In the name of the Italian People”).
What certainty can the lawyer provide if each judge, instead of applying the law, gives his preferred interpretation and does not even explain his interpretation of the laws in question? It should be noted that the system of appeals and claims is no guarantee for the citizen. Judges are only human and can make mistakes (errare humanum est), but they cannot and must not wilfully make mistakes, by malicious intent, serious misconduct or negligence, and the citizen must have his or her claims upheld, provided they are well founded, from the earliest stage. There are a large number of cases; this can be explained by the fact that if many decisions had been taken correctly from the outset, one could have avoided the proliferation of cases, procedures and claims, as can be seen here; and not forgetting the many cases where the citizen, disappointed and bemused to receive abnormal decisions, having lost all confidence in the justice system, decides not to appeal. This entails a justified loss of confidence in the courts and an increase in workload and expense for the State, because of the extra work for other judges, registries and bailiffs.
And what justification and explanation could be given by the lawyer to this client, to whom he had predicted a certain result, with all due caution, only to present a decision by the judge that is diametrically opposed to that which he predicted?? If that is the result of an error, or a lack of knowledge or commitment or analysis on the part of the lawyer, he should take responsibility for it; but when this depends on the judge, it is damaging to the lawyer because the client will necessarily have a negative opinion of the lawyer’s work. Are clients and citizens capable of understanding whether it is the lawyer or the judge who has made a mistake and to what extent?? If the lawyer does not obtain appropriate results with legal argument, what other means are available?? What must the lawyer do to obtain something to which he is professionally entitled?? ... Or should the lawyer not make life difficult for himself and carry on regardless, tending to his garden [il suo orticello], while protecting his head from any tiles that might fall off the roof – because on the one hand he is not protected and on the other he is at the mercy of another person’s discretionary power?? ... Without any regard for his own professional dignity?? ...
When this letter reaches you I will be undergoing a medical operation. I am sorry that, for the time being, I cannot provide any further clarification or explanations to those who may wish them. I am however ready, if necessary, to answer for my conduct and to provide any clarification that may be requested of me after my operation, when I am in a better state of health again.’”
8.  Finding that certain expressions used in the circular letter had impugned his reputation, X filed a criminal complaint for defamation against the applicant.
9.  As X was a judge in Lucca, the file was transferred, under Article 11 of the Code of Criminal Procedure, to the judicial authorities of Genoa.
10.  On 13 February 2003 the Genoa public prosecutor requested that the applicant be committed to stand trial before the court of that city.
11.  X joined the criminal proceedings against the applicant as a civil party.
12.  According to the charge, in the circular letter the applicant had expressed admissible (lecite) criticism in so far as he spoke about interpreting and performing the work of a judge, but had then overstepped the limits to his freedom of expression by writing the following sentences in particular:
(a) “Autonomy ... cannot be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness”.
(b) “... in a partial manner, perhaps with a display of arrogance, or ... a ruling ... given with total indifference and lack of commitment”.
(c) “... the judge ... cannot allow himself not to respect the work of others, including that of the lawyer”.
(d) “Judges are only human and can make mistakes ... but they cannot and must not wilfully make mistakes, by malicious intent, serious misconduct or negligence”.
13.  At the hearing of 4 March 2004 the representative of the public prosecutor’s office stated that the applicant also had to be charged with proffering insults, given that it transpired from X’s statement that he had been one of the recipients of the circular letter.
14.  In a judgment of 3 February 2005, deposited in the court’s registry on 11 February 2005, the Genoa District Court convicted the applicant of defamation and proffering insults and sentenced him to four months’ imprisonment and to the reimbursement of X’s court costs (amounting to 2,000 euros (EUR)) with reparation for the damage sustained by X. The amount of that damage was to be fixed in separate civil proceedings; the court nevertheless awarded X an advance payment (provisionale) of EUR 15,000.
15.  The District Court observed that it was not in dispute that the applicant had written the circular letter and had asked his secretary to send copies to the judges in the civil divisions of the Lucca District Court. During the proceedings, the applicant had filed pleadings and had made spontaneous statements. His arguments in defence had not, however, made it possible to disregard the offensive nature of the expressions used in the circular letter, exacerbated by the fact that he was a lawyer. In his letter, the applicant had stated that he had the greatest respect for the judiciary and for judges who carried out their duties with “dedication, commitment and decorum”. But he was clearly not talking here about X, who had been accused by the applicant of being arrogant and indifferent, of believing that he was immune because he held a position of power, and of having committed wilful mistakes, by malicious intent, serious misconduct or negligence. Those accusations could be explained not by X’s inaction in the handling of a case, but by the decisions taken by X in a case where the applicant’s requests had been rejected. Instead of reiterating his legal arguments, the applicant had overstepped the limits of his right to criticism, alleging that X had erred “wilfully”, thus seriously impugning the honour of the judge in question.
16.  According to the District Court, the subject of the accusations contained in the circular letter could only have been X, as shown by similar letters, which expressly referred to that judge, addressed by the applicant and his clients to the CSM, the Ministry of Justice, the National Council of Notaries and the National Bar Council.
17.  The applicant’s defence (esimente) of provocation (Article 599 of the Criminal Code) was not accepted. Even supposing that the decisions of X could be regarded as “unfair acts”, the circular letter, sent about four months after those decisions, did not constitute an immediate reaction to them.
18.  The applicant lodged an appeal.
19.  He alleged, among other things, that the offences he was said to have committed were punishable merely by a fine, that the sentence imposed on him had been disproportionate and that the advance he had to pay was excessive. Moreover, in his complaint X had not mentioned that he himself had been a recipient of the circular letter, thus ruling out the charge of proffering insults. The applicant also argued that it could not be seen from the text of the letter that the criticism was directed at X and that this document, when assessed as a whole, was merely a manifestation of his frustrations about the shortcomings of the justice system in general.
20.  Lastly, in the alternative, he took the view that his defence of provocation was valid. He argued that, in the proceedings for the partition of an inheritance, X had on a number of occasions rejected his requests for the suspension of a sale by auction of the flat in question, and that X’s decisions had subsequently been overturned by another judge.
21.  At the hearing of 12 March 2007, the applicant stated that it had not been his intention to offend X personally and he produced documents as evidence of his ill-health.
22.  In a judgment of the same day, deposited in the court’s registry on 2 April 2007, the Genoa Court of Appeal ruled that no prosecution could be brought on a charge of proffering insults, as there had been no criminal complaint on that ground, and reduced the sentence for the offence of defamation to a fine of EUR 400. It stated that this sentence was fully remitted (condonata), and ordered the applicant to make reparation for the damage sustained by X, which it assessed at EUR 15,000, and to reimburse X’s court costs in the appeal proceedings (EUR 2,000).
23.  The Court of Appeal observed that, in the first part of his circular letter, the applicant had recounted the tribulations of the partition proceedings in which X had taken the impugned decisions. He had added that he regretted having to make complaints about certain individuals (X and another judge) whom, even though they had different duties from his own, he regarded as “colleagues”. In addition, the judges of the Lucca District Court, giving testimony in the first-instance proceedings, had had no difficulty in identifying X as the addressee of the criticisms in the circular letter. In those circumstances, the applicant’s argument that the letter was merely a manifestation of his discontent about the justice system in general could not be accepted.
24.  In the Court of Appeal’s view, the decisions taken by X in the context of the inheritance partition proceedings could, at most, be regarded as “erroneous” but not as “unfair”. The court also pointed out that one of the questions at the heart of the dispute (the existence of inheritance rights in favour of the partner) had been settled by the Court of Cassation differently from the applicant’s proposed solution. The National Bar Council had in fact noted that the applicant’s letters could have been seen as a means of pressure against the judges concerned.
25.  According to the Court of Appeal, the applicant had not expressly challenged the part of the first-instance judgment considering that the expressions contained in the circular letter had overstepped the limits of the right to criticise.
26.  The applicant, who had no criminal record, had to be allowed the benefit of mitigating circumstances, and under Article 52 of Legislative Decree no. 274 of 2000 (see paragraph 32 below), the penalty for defamation was now a mere fine (and not a custodial sentence).
27.  The Court of Appeal observed that the distribution of a letter such as that sent by the applicant, within a small court, could not but impugn the dignity of the judge against whom it was directed and his image as an independent judge. The expressions used by the applicant, outside any procedural act, sought to call into question the professional conduct of X, who was portrayed, within a restricted community, as a partial and soft judge. In the light of those considerations, the Court of Appeal, ruling on an equitable basis, awarded the civil party EUR 15,000 in non-pecuniary damage.
28.  The applicant appealed on points of law.
29.  He reiterated his grievances and, referring to a particular passage in his grounds of appeal, stated that the Court of Appeal had made a mistake in asserting that the defendant had failed to challenge the finding about the offensive nature of the expressions contained in the circular letter. In any event, the judge had been required, at all stages of the proceedings, to verify of his own motion whether or not the criminal charge in question was made out.
30.  In a judgment of 12 November 2008, deposited in the court’s registry on 17 December 2008, the Court of Cassation, finding that the Court of Appeal had given logical and correct reasoning in respect of all the contentious points, dismissed the applicant’s appeal on points of law.